In my election law course, which I teach every fall and share on my substack, my first reading assignment is to ask my students to scour the Constitution for all references to the “right to vote,” voting, elections and related terms.
What students quickly discover is how little these topics actually appear in the original Constitution. And for all the discussion of the “right to vote” in America, no such phrase appears in the original Founding document.
The few words that do appear show us much about how the Founders conceived of voting, elections and democracy—and about the compromises they made to gain ratification of the Constitution in the first place. This allows students to understand why the debate over voting rights has been so contested ever since (which sets the stage for the rest of the course).
But it also is helpful, practically, as a matter of law—because it makes clear who has the power to enact election laws.
And here’s a little hint for the current occupant of the White House—the Constitution does not give that power to the president.
Which is why this week’s executive order on voting and elections is such a disaster when it comes to our Constitution.
Elections Clause:
For our purposes, the key Constitutional clause to focus on is the Elections Clause. Here it is:
Art. 1, Section 4 - Elections, Meetings
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations….”
The words are self-explanatory: states set the basic ground rules of how elections are conducted, but Congress has the ability to alter or override those rules “at any time.”
Why the option for Congressional involvement?
Because some Founders were deeply concerned that states and statehouses might use the power to set these rules to help themselves at the expense of the federal government—including not holding federal elections at all. As Madison wrote: “Whenever the State Legislatures had a favorite measure to carry, they would take care so as to mould their regulations as to favor the candidates they wished to succeed.”
Hence, the two-step dance.
States, and Congress. Congress, “by Law.”
Note who is not included in this two-step: the President, via Executive Orders.
Seems pretty clear, doesn't it?
But in case that isn’t clear enough, there’s another clause we (and Trump) should look at. This is the provision that sets the qualifications for who gets to vote. Here’s that one:
Voting Qualifications
“Art. 1, Section 2: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”
This clause establishes two things.
First, that the “People of the several States” choose the Members of the House of Representatives. (At the time, this was the only federal election where the People chose.) Later Amendments would change that.
And second, this clause establishes that it is the states themselves—in setting the standards for their own legislative elections—that determine who is eligible to vote in those federal House of Representative elections.
I won’t go into all the reasons why this decision was made. (Like everything else in the Constitution, this clause was the result of a compromise.) But this clause meant that a wide array of state-level rules already in place in these states determined who could vote—and who could not vote—in federal House races. So the clause offered a blanket approval of all those rules and restrictions (such as property qualifications, taxes, gender and race exclusions, etc). At the same time, this clause marked a rejection of calls from some Founders to lock voting restrictions explicitly into the new Constitution itself.
Rather than establishing a basic, national standard for eligibility to vote—or a federal “right to vote”—this clause marked an open book, with no floor or ceiling. Which kickstarted generations of future, fierce debate (and much worse) about the nature of voting itself (is it a “right” or a “privilege”?) and who gets to vote. And for much of our history, that debate is subject to the whims of state-level politics and machinations, with no federal recourse available.
That would change after the Civil War, when Constitutional Amendments ratcheted up rights so that States could not deny voting based upon race, gender, or age (under 18). And these Amendments granted the federal government power to enforce these new protections.
But as with the Elections Clause, this grant of power is also explicit.
Which branch does it give that power to?
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
That’s the language that accompanies each Amendment.
As with the Elections Clause, the basic structure is clear: states and Congress play the key role when it comes to voting. And Congress acts “by appropriate legislation.”
Not the President.
And not via executive order.
See the pattern?
Trump’s Order
As a matter of substance, Trump’s Executive Order would wreak the same devastation that the SAVE Act seeks to do, and then some. It would require proof of citizenship to register to vote (go HERE to see how this impacts millions), cuts off mail-in ballots on Election Day, and other steps around voting equipment and processes.
But as a matter of Constitutional authority, the bottom line is that it’s an attempt by Trump to exercise powers over voting and elections that are specifically granted to Congress and states. It would’ve been as if Lyndon Johnson had attempted to pass the Voting Rights Act via executive order.
And that’s why so many respected lawyers have panned the order so brutally. Here’s pro-democracy attorney Mark Elias:
“Donald Trump issues executive orders as performance art. Like many of his others, this order is confused, rhetorical and — in places — nonsensical. It asserts facts that are not true and claims authority he does not possess. It is not meant to be taken seriously or literally. Rather, it is the empty threat of a weak man desperate to appear strong.”
Perhaps the most known and respected elections law professor, Rick Hasen, calls it an “executive power grab”:
“We’ve talked many times in the past about how limited the President’s power is over federal elections: power is mostly in the hands of states (and substate units like counties), with Congress setting certain rules for the conduct of elections….Trump’s order in a number of places purports to direct the EAC to do certain things. He doesn’t have that power, unless the courts accept some aggressive version of the unitary executive theory.”
Here are other takes:
Arizona Secretary of State Fontes: “This is not a statute. This is an edict by fiat from the executive branch, and so every piece of it can be challenged through the regular judicial process.”
Drew Godinich, the interim executive director of the Democratic Association of Secretaries of State: the order is a “blatant federal attack on states’ power and eligible American voters everywhere.”
The ACLU called it an “extreme abuse of power.”
The Brennan Center:
David Becker, Center for Election Innovation and Research:
“Look, the Constitution was very clear: The president is not king…The president doesn’t get to establish executive orders that affect the states with the swipe of a pen. If he wants to affect funding, he has to go through Congress to do that.”
Washington state Attorney General Nick Brown:
“I don’t think any serious lawyer looking at it thinks the order is legal…Voting systems for generations have been the purview of states and counties to govern.”
And here’s more from Elias:
“[The EO] is a rambling document that asserts powers the president simply does not have….The Constitution is explicit about who has the power to determine how elections are conducted:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
States have the primary role in setting election rules. Congress can override those rules by enacting laws. The president is not mentioned — because he has no independent role.
In fact, Congress has already enacted laws governing many aspects of elections. Those laws are just that — laws. They cannot be altered or overridden by a piece of paper in a fancy folder, no matter how forcefully Trump signs it with a Sharpie.
Calling it an executive order may mean something to him, but legally, it is irrelevant. Neither the Constitution nor the law cares about his feelings.
Trump’s advisors undoubtedly know this and have likely explained it to him. But Trump doesn’t care. He believes that by signing an outrageous document filled with threats and bluster, he can intimidate state and local officials, lawyers, judges and voters. He is counting on us being too scared to fight back.
He is also counting on voters not caring enough to exercise their rights. By making the process seem complicated, contentious and dangerous, he hopes to bully the election system into submission.
We cannot let that happen”
Bottom line:
As bad as this Executive Order is, because of how egregious it is, it may ultimately be of benefit.
I don’t hold my breath for the Supreme Court on anything these days, particularly around voting, but I’d far rather have this order challenged and reviewed by the federal courts than a passed and signed SAVE Act (as bad as it is).
At this time, any delay or hold-up in implementation of Trump’s darkest plans is a win.
So if Trump’s need for performative BS makes successful challenges far more likely, clogs up the courts, and slows things down as we rally to re-gain federal power, Trump’s sloppiness here may end up helping.
Day 115 — March 27, 2025
In yet another wave of censoring history, Trump signed a sweeping executive order to overhaul the Smithsonian and other public institutions to, as the order states, “restore” American history.
Echoing national and state efforts to ban books and censor the teaching of history in higher education institutions, the order criticizes efforts to tell America’s full history: “[r]ather than fostering unity and a deeper understanding of our shared past, the widespread effort to rewrite history deepens societal divides and fosters a sense of national shame, disregarding the progress America has made and the ideals that continue to inspire millions around the globe.”
The order then empowers JD Vance (no, I can’t imagine a worse person to take on this role) to oversee and prohibit the Smithsonian from receiving appropriations for exhibitions and programs that “degrade shared American values, divide Americans based on race, or promote programs or ideologies inconsistent with Federal law and policy."
In a section titled “Restoring Truth in American History,” the order then calls on the Secretary of the Interior to:
“determine whether, since January 1, 2020, public monuments, memorials, statues, markers, or similar properties within the Department of the Interior’s jurisdiction have been removed or changed to perpetuate a false reconstruction of American history, inappropriately minimize the value of certain historical events or figures, or include any other improper partisan ideology;”
“ take action to reinstate the pre-existing monuments, memorials, statues, markers, or similar properties”; and
“ensure that all public monuments, memorials, statues, markers, or similar properties within the Department of the Interior’s jurisdiction do not contain descriptions, depictions, or other content that inappropriately disparage Americans past or living (including persons living in colonial times), and instead focus on the greatness of the achievements and progress of the American people or, with respect to natural features, the beauty, abundance, and grandeur of the American landscape.”
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